Centre Amends Surrogacy Rules To Allow Couples With Medical Conditions To Use Donor Gametes

In a crucial development to the surrogacy landscape in India, the Central government has modified the Surrogacy (Regulation) Rules, 2022 and notified that for couples (husband or wife) certified as suffering from medical conditions, both gametes need not come from the intending couple.

To recap, Form 2 (Consent of the Surrogate Mother and Agreement for Surrogacy) of the Surrogacy Rules read with Rule 7 was amended on March 14, 2023 to stipulate that donor eggs could not be used for gestational surrogacy of an intending couple.

Para 1(d) of the same has now been amended by a notification of the Ministry of Health and Family Welfare to read thus:

“(i) couple undergoing surrogacy must have both gamete from the intending couple. However, in case when the District Medical Board certifies that either husband or wife constituting the intending couple suffers from medical condition necessitating use of donor gamete then surrogacy using donor gamete is allowed subject to the condition that the child to be born through surrogacy must have atleast one gamete from the intending couple;

(ii) single woman (widow or divorcee) undergoing surrogacy must use self eggs and donor sperms to avail surrogacy procedure”.

Therefore, surrogacy using donor gamete shall now be permissible if the District Medical Board certifies that the husband or the wife constituting the intending couple suffers from a medical condition that necessitates use of a donor gamete. This is still however subject to the condition that atleast one gamete shall come from the intending couple.

Notably, last year, the 2023 amendment was challenged before the Supreme Court by a woman suffering from Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome - a condition that prevented her from producing eggs. In course of hearing, it was observed by the top Court that the insistence on the egg and sperm of the intending couple for gestational surrogacy was prima facie against Rule 14(a) of the Surrogacy Rules.

Eventually, the top Court allowed the petitioner-woman use of donor egg for surrogacy by staying the application of the amendment qua her, leaving the larger issue open for consideration. Besides the fact that the only way for the woman to achieve parenthood was to use a donor egg, it was noted that the couple had commenced the procedure for achieving parenthood through surrogacy much before the amendment.

While hearing a challenge to the amendment, the Delhi High Court also observed the same year that barring use of donor gametes prima facie violated basic rights of a married infertile couple to parenthood by denying them access to legally and medically regulated procedures & services. It was further opined that the amendment effectively rendered the Assisted Reproductive Technology (Regulation) Act, 2021 otiose and engendered a fundamental conflict with its stated objectives. In this case, the embryo was generated prior to the amendment.

In fact, another petition raising the same issue was filed before the Bombay High Court as well in 2023, averring that men and women who face complications related to fertility would not be able to apply for surrogacy if donor gametes are barred.

In early January this year, the Centre had informed the Supreme Court Bench of Justices BV Nagarathna and Sanjay Karol during a hearing that following its observations in cases of married women unable to conceive due to medical conditions, amendment to the provisions of Surrogacy Rules (including those barring use of donor gametes) was under active reconsideration.

Background

This latest development comes against the backdrop of a series of legal challenges surrounding surrogacy laws in India. The surrogacy landscape has witnessed significant regulatory changes aimed at safeguarding the interests of all stakeholders involved, including intending couples, surrogate mothers, and the children born through surrogacy. However, the evolving legal framework has prompted a surge in litigation, with petitioners seeking clarity on various provisions and praying for exemptions based on individual circumstances. Constitutional challenges against various provisions of the Assisted Reproductive Technology (Regulation) Act, 2021, the Assisted Reproductive Technology (Regulation) Rules, 2022, the Surrogacy (Regulation) Act, 2021 and the Surrogacy (Regulation) Rules, 2022 have also been mounted.

Click here to read the notification